Martin Nettling v. Registrar of Motor Vehicles (MTO), 2019 CanLII 119757

Martin Nettling v. Registrar of Motor Vehicles (MTO)

Date: 2019-11-27

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under section 47 (1) of the Act

Between:

Martin Nettling Appellant

and

Registrar of Motor Vehicles (MTO) Respondent

DECISION

Panel: Isla McPherson, M.D., Adjudicator Zahra Dhanani, Adjudicator

Appearances: For the Appellant: Martin Nettling, self-represented For the Respondent: Sonya DeSantis, Agent

Heard by Teleconference: September 9th and October 17th, 2019

REASONS FOR DECISION

Overview

1The appellant is an 82-year-old man who lives in Burlington, Ontario.

2Dr. Singh, the appellant’s psychiatrist examined him on April 26, 2019. As a result of this examination, Dr. Singh submitted an unsolicited Medical Condition Report to the Ministry of Transportation (“MTO”), checking the box that states that the appellant has a psychiatric illness due to an anxiety disorder.

3As a result, the MTO suspended the appellant’s driver’s license. The appellant appeals this suspension.

ISSUES

4The issue in this appeal is whether the appellant has a medical condition that is likely to significantly interfere with his ability to drive a vehicle safely. In order to answer that question, we will address the following issues:

a) Does the appellant have a medical condition?

b) If a medical condition is proven, is it likely to significantly interfere with his ability to drive safely?

RESULT

5We find that the appellant has a medical condition that will interfere with his ability to drive safely and we confirm the Registrar's decision to suspend the appellant’s driver’s license.

PRELIMINARY ISSUES

6The hearing started on September 9, 2019. On that date, the appellant reported that he was no longer on the anti-anxiety medication lorazepam.

7The Registrar requested that the appellant ask his doctor to complete a new Mental Health Assessment Form (“MHAF”) to ensure that his anxiety disorder is stable, and that the appellant has enough insight into his condition that it would not pose a risk to driving if the condition were to deteriorate.

8The hearing was adjourned for five weeks so that the appellant would have enough time to get the form filled out by his doctor.

9At the start of the second hearing date, the appellant informed us that he had forgotten to take the MHAF to the doctor. The Registrar suggested that we reserve our decision until the appellant provides this outstanding information.

10We decided that we would proceed with the hearing as there had already been a long delay to afford the appellant the opportunity to provide the MHAF report. Further, the appellant provided no indication as to when the report would be made available so we could not rely on it being submitted.

LAW

11The Registrar has the power under s. 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) to suspend a driver’s licence for a “sufficient” reason.

12One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the Act is that the driver suffers from a medical condition or disability likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA states:

14(1) An applicant for or a holder of a driver’s licence must not:

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely…

13Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (“CCMTA Standards”) in determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications. We may take the CCMTA Standards into consideration, although they are not binding on us.

14Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

15The Registrar has the burden of establishing the ground for suspending the driver’s licence on a balance of probabilities.

16Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

ANALYSIS

Does the appellant suffer from a particular medical condition?

17In this case, the appellant confirmed that Dr. Singh was his attending psychiatrist while he had a 6-day admission to the hospital for an incident involving his anxiety disorder.

18We find that 6 days of observation is a generous period of time to conduct a psychiatric assessment and therefore Dr. Singh’s medical opinion should hold a lot of weight in this decision.

19The appellant also gave oral testimony that he has suffered from an anxiety issues for almost 20 years. His anxiety has resulted in 2 admissions to the hospital and long-term pharmacological treatment. He continues to take medication for his anxiety issues.

20We find that the appellant does have a medical condition, namely anxiety disorder.

Does or will the appellant’s medical condition significantly interfere with his ability to drive?

21The appellant’s appeal was based on the ground that his wife had reported concerns about his driving because she wanted the car for herself. The appellant testified that his wife and daughter did not like his driving style because he drove a little over the speed limit.

22The appellant insisted he is a safe driver. He asserted that he has only had one minor accident during his driving career.

23The appellant indicated that he wants his driver’s licence re-instated because he wants to be able to leave his house for independent outings. He stated that he would only go out occasionally and would not drive very far. He stated that he would use his vehicle mainly to drive to the grocery store and Canadian Tire.

24The Registrar submitted that the appellant has suffered from long-term anxiety and that to lift the suspension, the MTO would require an update on his mental health from a treating physician.

25We find the Registrar’s position that they require the completion of the MHAF to be a reasonable requirement in this case.

26The appellant reports he has suffered from anxiety for almost 20 years. He reports his anxiety started when he was diagnosed with a rapid heart rate caused by atrial fibrillation. He reports at that time “I had a complete breakdown, and since then it doesn’t take much to get me upset again.”

27The appellant describes having attacks that are triggered when he feels his heart racing. When he feels his heart racing, he reports becoming very worried that he is going to have a stroke. He describes feeling a sense of overwhelming anxiety during these times.

28The appellant had a significant anxiety attack in April 2019 that prompted his wife to call 9-1-1 and led to his 6-day hospital admission and assessment by Dr. Singh.

29The appellant stated that the attack followed his discontinuation of lorazepam, the anti-anxiety medication he had been taking off and on for 20 years.

30Given the long-standing history of anxiety and dependence on lorazepam to manage symptoms, the appellant was questioned on what measures were now in place to help manage his symptoms. The appellant reports he is taking Effexor, which he has been on long-term. He reports he is also taking Olanzapine, which is a newer medication. We acknowledge that olanzapine falls into the category of anti-psychotic medication and is often indicated to treat psychosis.

31The appellant reports that he does not get support from any counsellors, support programs, addiction programs or any other mental health specialist to support his mental health. Presently, he no longer follows up with his community psychiatrist.

32The only health care provider he reports seeing is his family physician, although he reports that his family doctor will be retiring in the next few months. He does not know who he will follow up with after his family doctor retires.

33When questioned why he did not have the MHAF completed by his family doctor, the appellant reported that he did not see the point as he has not had any recent anxiety attacks and that is all the form would say.

34When questioned about what he would do if he suffered an attack while driving, he reported that he would pull over. He reported he did not think this would happen given that he has been feeling much better.

35The CCMTA guidelines discuss the role of driver “insight” as a critical consideration when assessing risk of episodic impairment of functional ability due to psychiatric disorder. Patients with good insight would be more likely to seek appropriate attention and avoid driving during acute episodes.

36We find that the appellant did not demonstrate enough insight into his condition to satisfy us that his licence should be re-instated without a medical opinion supporting that position.

37The appellant was asked on several occasions by the respondent to submit the MHAF in order to document the progress of his mental health since his discharge from the hospital after suffering from an acute psychiatric illness. The completion of the MHAF was requested in writing as well as through phone conversations with the appellant. The first hearing was adjourned for 5 weeks to allow the appellant time to gather further medical information to support his case.

38The appellant has not submitted any medical evidence of reassessment of his psychiatric illness.

39The appellant does not seem to demonstrate insight into the chronic and recurrent nature of his anxiety disorder and the risks that it might pose to driving if he has an attack while driving. This opinion is formed because he has discontinued follow up with his community psychiatrist for unclear reasons and has not sought out reasonable alternative supports for his chronic psychiatric illness.

40The appellant also discontinued lorazepam within two weeks of discharge from the hospital, while he had been given 10 refills on this medication from Dr. Singh, suggesting he should continue to take the medication long-term. Given that the trigger for his attacks is a fast heart rate secondary to atrial fibrillation, and this heart condition has not resolved and may continue to act as a trigger, and that one of the primary treatments he has relied upon over the last 20 years to manage his symptoms (lorazepam) has been discontinued, it is reasonable to assume that his anxiety attacks may continue.

41There appears to be a risk to driving if he has an anxiety attack while driving, as the appellant’s most recent anxiety attack while not taking lorazepam resulted in a call to 9-1-1 and multi-day hospital admission.

42Having an anxiety attack while driving poses significant risk of harm to the appellant and to the public. We find that the evidence before us indicates that the appellant’s anxiety disorder poses a risk to driving safely at this time.

CONCLUSION

43We find that on a balance of probabilities, the Registrar has established that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a vehicle safely. We find that the appellant did not provide sufficient evidence to support his position that his driver’s licence should be reinstated.

ORDER

44For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.